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Judgement

32. The Appeals Chamber notes that it is the established practice of the Tribunal to publish redacted public versions of documents that “[contain] information which, if disclosed, might cause prejudice, concerns about safety, or serious embarrassment to a party or a witness”.[1] This practice extends to judgements.[2] Insofar as Šešelj contends that the established practice of the Tribunal violates the Statute, Rules or the ICCPR, he is incorrect. None of these states that the right to a public judgement is absolute. They recognize that it needs to be balanced against other interests.[3] In fact, publication of confidential witness or victim information would run counter to the explicit protection of witnesses and victims required by the Tribunal’s Statute and implemented in the Rules.[4] […]

[3] See Article 23 of the Statute; Rules 78 and 98ter of the Rules; Article 14(1) of the ICCPR. Indeed, Article 14(1) of the ICCPR, providing for the right to a public judgement, enshrines certain exceptions. In interpreting this article, the Human Rights Committee stated that “the judgement must, with certain strictly defined exceptions, be made public”. See CCPR General Comments, No. 13, 13 April 1984, para. 6 (emphasis added). Manfred Nowak writes in his commentary on the ICCPR that "[i]f, for example, the public was excluded from [a] trial in the interest of the private lives of the parties, then there is a legitimate need in keeping certain parts of the judgment secret, which can be accomplished by making the judgment anonymous or by publishing an abbreviated version". See Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, 1993, p. 253. The Appeals Chamber opines that the same logic must be applied to cases of witness protection. Further support for this position can be drawn from the jurisprudence of the ECtHR. The ECtHR held in Campbell and Fell v. United Kingdom, that "in each case the form of publication given to the 'judgment' under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object pursued by Article 6 para. 1 (art. 6-1) [of the European Convention on Human Rights] in this context, namely to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial". ECtHR, Campbell and Fell v. The United Kingdom, Application No. 7819/77; 7878/77, Judgment, 28 June 1984, para. 91.

[4] See Articles 15, 22 of the Statute [of the Tribunal]; Rule 75 of the Rules [of Procedure and Evidence of the Tribunal].

736. The vagueness of the Judgement, in itself an error on the part of the Trial Chamber,[1] compels the Appeals Chamber to examinethe broadcasts between 1 January and 6 April 1994 referred to in the Judgement in order to determine whether one or more of them directly incited the commission of genocide. As recalled in the Introduction,[2] when the Trial Chamber errs in law, the Appeals Chamber must determine whether it is itself satisfied beyond reasonable doubt in regard to the disputed finding before it can affirm it on appeal.

770. However, the Appeals Chamber notes that the Trial Chamber did not clearly identify all the extracts from Kangura which, in its view, directly and publicly incited genocide, confining itself to mentioning only extracts from Kangura published before 1 January 1994 to support its findings.[3] […] Moreover, as explained previously,[4] the lack of particulars concerning the acts constituting direct and public incitement to commit genocide represented an error, and obliges the Appeals Chamber to examine the 1994 issues of Kangura mentioned in the Judgement in order to determine, beyond reasonable doubt, whether one or more of them constituted direct and public incitement to commit genocide.

[1] As recalled in the Naletilić and Martinović Appeal Judgement, paragraph 603, and in the Limaj et al. Appeal Judgement, paragraph 81, a trial judgement must be sufficiently reasoned to allow the parties to exercise their right of appeal and the Appeals Chamber to assess the Trial Chamber’s conclusions.

23. The Appeals Chamber recalls that, pursuant to Article 22 of the Statute, “[t]he judgement shall be rendered by a majority of the judges of the Trial Chamber, and shall be delivered by the Trial Chamber in public. It shall be accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended”. Similarly, Rules 88(A) and (C) of the Rules of Procedure and Evidence of the Tribunal (“Rules”) provide that “[t]he judgement shall be pronounced in public”, “rendered by a majority of the Judges”, and “accompanied or followed as soon as possible by a reasoned opinion in writing”.

24. In the present case, the Trial Judgement was rendered unanimously and delivered in public on 18 December 2008. It was followed by a written reasoned opinion on 9 February 2009. On the day of the delivery of the Trial Judgement, the Trial Chamber pronounced its verdict and sentence, and provided an oral summary of the judgement, highlighting key findings. It specified that:

The judgement amounts to several hundred pages. The Chamber will now read out its summary. Only the key findings can be highlighted here. The full text of the judgement will be available in the coming days after the conclusion of the editorial process. It contains many incidents where the Prosecution did not prove its case. A French translation will be provided in due course. This summary is not binding. Only the written judgement is authoritative.[1]

25. While the oral summary of the Trial Chamber’s findings was not authoritative, the verdicts and sentences pronounced on 18 December 2008 were. The reasoned opinion which followed was simply a written version of the judgement. The Appeals Chamber considers it to be clear from the statement noted above that the written reasoned opinion was complete at the time of the delivery of the judgement on 18 December 2008 and that what followed was merely the completion of the editorial process.[2] Nsengiyumva does not demonstrate that Judge Reddy failed to fulfil his judicial duties in this case prior to the expiration of his mandate on 31 December 2008.